October 30, 2020 | Reading Time: 3 minutes

Ignore the courts. Count the votes

Obey state law. Obey state courts. Defend our democracy.

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I’m tired. I’m sure you are, too. The upside is there’s only four days to go until Election Day. The downside is those four days are going to age us by a decade. Making the hours crawl by even more is a series of federal court cases making it clear that Republican jurists are inventing law to stop citizens from voting or to invalidate their votes. There may be a time, perhaps sooner than you think, for unorthodox politics.

When it comes to legal theory, I defer to authorities (here, here and here). Correct me if I’m wrong, but this is how I see things. “Conservative” federal jurists (note the quotes) are sticking their noses where they don’t belong. It’s one thing for them to overturn a state law violating the US Constitution. It’s another to overturn a state Supreme Court’s interpretation of state law according to that state’s constitution. That’s what happened with Pennsylvania, North Carolina and Minnesota. “Conservative” jurists, including five sitting on the US Supreme Court, overruled court-ordered extensions of mail-in deadlines. My friend, if this looks like a betrayal of conservatism, that’s because it is.

Count the votes as a form of civil disobedience. Count the votes as an expression of American patriotism.

It gets worse. Justices appeared to accept as true a jaw-dropping lie, which is that tinkering with election deadlines somehow compromises the integrity of the vote. The extensions, of course, are entirely reasonable. We are smack in the middle of a covid pandemic. More than 234,000 Americans are dead. Infections are spiking, especially in rural and swing states. (There were 88,521 new cases Thursday alone, according to data from Johns Hopkins.) Easing deadlines is what you’d expect from state officials honoring the letter and the spirit of their state constitutions. Yet Justice Neil Gorsuch questioned whether the pandemic were a true “natural disaster” (a criteria for extensions). Justice Samuel Alito said Pennsylvania’s election will be “conducted under a cloud.” Officials should, therefore, throw away votes received after Election Day.

What’s going on seems pretty straightforward. The president has been yammering nonstop about “voter fraud.” It’s the only thing, Donald Trump says, that will make him lose to Joe Biden. The only outcome he will accept, therefore, is victory. This is not only extortion (vote for me or say goodbye to a peaceful transfer of power), it is extortion based on a whopper. Voter fraud on the scale he suggests is fictional. When it happens, it’s in dribs and drabs, not anywhere close to wholesale. (When it happens, it’s often Republican voters committing the crime.) And yet the president keeps lying, and now, evidently, Republican jurists are listening. By accepting as true a categorical falsehood, they make the lie real. (Their rulings, after all, constitute the common law.) By overturning a state court’s interpretation of state law, they push the Big Lie all the way down to the level of local affairs. Dear Leader’s Big Lie is everyone else’s Big Reality. My friend, if this looks like what authoritarians do, that’s because it is.

Here’s the tip jar! Put something nice in it!

Some might look at this and despair. Don’t. There’s plenty we can do. This is a time for unorthodox politics, creative thinking, and moral guts. For me, I’d suggest Democratic secretaries of states (the elected officials ultimately responsible for elections in their states) ignore federal court orders. Keep counting votes pursuant to state election law or state court rulings. Count the votes as a form of civil disobedience. Count the votes as an expression of patriotism. Count the votes in order to honor the obligations of elected officials to state residents. Count the votes in defense of states rights. North Carolina, Pennsylvania and Minnesota all have Democratic secretaries of state. They should all risk being held in contempt. Our republican democracy demands no less.

I’m not encouraging lawlessness. I’ll cite Martin Luther King, Jr.’s “Letter from a Birmingham Jail.” In it, he said: “In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

My suggestion is, in reality, expressing the highest respect of a state’s sovereignty, too. Remember the Republican jurists aren’t just stomping federalism. They are making state elected officials complicit in the disenfranchisement of their constituents. State residents, if they choose to, would be right in punishing the complicit. If you’re going to err in a republican democracy, do you err on the side of judges or the side of the people? That’s a moral as well as a legal question. The answer should be plain.

—John Stoehr

John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.

4 Comments

  1. Bennett on July 30, 2021 at 11:22 pm

    Good column, John. And there’s a slogan in your suggestion of this act of civil disobedience: “Count every vote.”

    As an additional sidebar, there is no reason necessarily to hew to those Supreme Court rulings anyway, based on recent practice and tactically.

    In recent practice, the Trump Administration, for example, has not honored recent Supreme Court rulings that were not in its favor–in particular on the handling of immigrant status. https://www.insidehighered.com/news/2020/07/28/despite-supreme-court-ruling-trump-administration-moves-curb-daca. I don’t advocate such a practice–that way lies anarchy or despotism (both actually). But it can be treated as a tactical measure, as well as a principled objection, and there is little reason to not respond to such pro-Trump/pro-Republican rulings as toothless. (It also puts a political thumb on the scale for rebalancing the Court.)

    And tactically speaking: counting the votes publicly and right away makes it much, much harder to dispose of them altogether. Gore should never have accepted the stopping of the vote count in 2000, notwithstanding the court’s ruling.

    • Jim Prevatt on July 30, 2021 at 11:22 pm

      I absolutely agree, Bennett, when you write “Gore should never have accepted the stopping of the vote count in 2000, notwithstanding the court’s ruling.”

  2. Jim Prevatt on July 30, 2021 at 11:22 pm

    Thanks for another excellent assessment of the situation. Reminds me of others in addition to MLK like Good Trouble Lewis and Mahatma Ghandi. I’m not usually a big fan of “states’ rights” because it has seemed in the past to be invoked to enforce white supremacy. But in this case you mention today, John, I’m all for it. I hope our NC Secretary of State reads this.

  3. Thornton Prayer on July 30, 2021 at 11:22 pm

    Your analysis is spot on and your recommendations are brilliant political strategy. If the Clown Conservatives on SCOTUS and other parts of the federal judiciary try to shut down the count, continuing the count will be both a massive act of civil disobedience and utterly shred the power and the already tattered legitimacy of the right wing jurists. Furthermore, assuming Biden assumes the presidency, he will have ample reason and justification to “reform and rebalance” an out of control judicial system that disrespects democracy and the will of the people.

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